Citation Nr: 0523636
Decision Date: 08/26/05 Archive Date: 09/09/05
DOCKET NO. 02-10 086 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Roanoke,
Virginia
THE ISSUE
Entitlement to service connection for the cause of the
veteran's death.
REPRESENTATION
Appellant represented by: Veterans of Foreign Wars of
the United States
ATTORNEY FOR THE BOARD
J. Barone, Counsel
INTRODUCTION
The veteran had active military service from August 1945 to
November 1947, and from March 1951 to April 1970.
This matter initially came before the Board of Veterans'
Appeals (Board) on appeal from an October 2001 rating
decision by the Department of Veterans Affairs (VA) Regional
Office (RO) in Roanoke, Virginia, which denied service
connection for the cause of the veteran's death. Accrued
benefits and eligibility to Dependent's Educational
Assistance under 38 U.S.C.A. Chapter 35 were also denied, but
no appeal was initiated, except as to the denial of service
connection for the cause of the veteran's death.
When the case was before the Board in September 2003, it was
remanded for additional development of the record. It was
returned to the Board for appellate consideration in August
2005.
The appeal is REMANDED to the RO via the Appeals Management
Center (AMC), in Washington, DC. VA will notify you if
further action is required on your part.
REMAND
In its September 2003 remand, the Board specifically directed
that the deceased veteran's sister be contacted and asked to
identify the veteran's health care providers and provide
authorization to obtain available records from Heardmont
Nursing Home. Although the sister's name (initials G.H.) and
address are clearly set forth on the veteran's death
certificate, there is no evidence that the veteran's sister
was contacted. As evidence of the veteran's medical
treatment after service is relevant to the instant case, all
attempts must be made to obtain such evidence prior to
further appellate consideration of the appellant's claim.
The U. S. Court of Appeals for Veterans Claims has held that
a remand by the Board confers on the veteran or other
claimant, as a matter of law, the right to compliance with
the remand order, and it imposes on VA a concomitant duty to
ensure compliance with the terms of the remand. Stegall v.
West, 11 Vet. App. 268 (1998). When a Board remand is not
complied with, as is the situation in this case, it is
necessary to remand the case until full compliance is
achieved. Id.
The Board regrets that there is further delay in the
resolution of this issue; however, its previous remand order
must be carried out.
Accordingly, this case is REMANDED to the RO for the
following action:
1. The RO should contact the veteran's
sister who is listed as the informant on
his death certificate and obtain from her
the names and addresses of medical care
providers who have treated the veteran
and the medical facilities where he
received treatment. Once this
information is obtained, the appellant
and/or the veteran's sister, or any other
appropriate person, should be requested
to provide the necessary authorization to
allow release to VA of the veteran's
available medical records, to include
those from the Heardmont Nursing Home
where the veteran was residing at the
time of his death, as noted in his
terminal hospital records. The RO should
obtain copies of these medical records
for association with the claims folder.
All attempts to obtain these records are
to be documented in the claims folder,
and the appellant is to be notified of
unsuccessful efforts in this regard.
2. Then, only if additional relevant
medical evidence is obtained, the RO
should arrange for a VA cardiologist to
review the veteran's entire claims file,
to include the service medical records,
and offer opinions as to whether it is at
least as likely as not that the blood
pressure readings noted in the veteran's
service medical records represent the
onset of essential hypertension and, if
so, whether there is an etiological
relationship between essential
hypertension and the cause of the
veteran's death due to an acute
myocardial infarction twenty-nine years
after his separation from active duty
service. Complete rationale should be
given for the medical opinions expressed
and incorporated in a written statement
that is to be associated with the
veteran's claims file.
3. The RO should then review the claims
folder to ensure that all development
actions have been conducted and completed
in full. If any development is
incomplete, appropriate corrective action
is to be implemented.
4. When the above development has been
completed, the RO should readjudicate the
issue on appeal based on a de novo review
of all pertinent evidence. If the
benefit sought on appeal is not granted
to the appellant's satisfaction, the RO
should issue a Supplemental Statement of
the Case and afford the appellant and her
representative the requisite opportunity
to respond.
Thereafter, the case should be returned to the Board, if in
order. The appellant has the right to submit additional
evidence and argument on the matter or matters the Board has
remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999).
This claim must be afforded expeditious treatment. The law
requires that all claims that are remanded by the Board of
Veterans' Appeals or by the United States Court of Appeals
for Veterans Claims for additional development or other
appropriate action must be handled in an expeditious manner.
See The Veterans Benefits Act of 2003, Pub. L. No. 108-183, §
707(a), (b), 117 Stat. 2651 (2003) (to be codified at 38
U.S.C. §§ 5109B, 7112).
_________________________________________________
RENÉE M. PELLETIER
Veterans Law Judge, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the
Board of Veterans' Appeals is appealable to the United States
Court of Appeals for Veterans Claims. This remand is in the
nature of a preliminary order and does not constitute a
decision of the Board on the merits of your appeal.
38 C.F.R. § 20.1100(b) (2004).